The election process known as ranked choice voting isn’t compatible with one of the oldest state constitutions in America, Connecticut Attorney General William Tong, a Democrat, says. 

Tong released an 11-page legal opinion Tuesday stating that the system of voting, which allows voters to rank their choices of candidates, violates at least two standing provisions of the Connecticut Constitution. The state’s attorney general said it was a “close call,” however.

“This is a close call. But I must conclude that legislation implementing RCV [ranked choice voting] in state general elections would not pass constitutional muster absent a constitutional amendment,” Tong said in the opinion, sent to Connecticut House Speaker Matthew Ritter, also a Democrat.

>>> Related: 9 Things You Should Know About Ranked Choice Voting

The attorney general’s opinion opens a new chapter for an issue that has become one of the largest battlegrounds of election reform, as public opinion largely has cemented on matters such as voter ID and mail-in voting. 

Alaska and Maine are the only states among the 62 jurisdictions that have adopted ranked choice voting, according to the Ranked Choice Voting Resource Center. The largest city to adopt ranked choice voting is New York City, which did so for primary elections, while Kansas and Wyoming adopted RCV for presidential primaries. 

Conversely, state legislatures in Florida, Tennessee, Idaho, South Dakota, and Montana have banned ranked choice voting, according to the coalition Stop RCV

A Connecticut bill to adopt ranked choice voting for presidential primaries was co-sponsored last year by a Republican and a Democrat and had the support of Gov. Ned Lamont, a Democrat, but it didn’t gain the traction to pass. 

The attorney general’s opinion applies to general elections for state offices, but there is still a path for reformers in Connecticut to pursue ranked choice voting for municipal, federal, and primary elections, said Will Mantell, spokesman for the FairVote, a pro-RCV group.

Supporters contend that ranked choice voting makes politics less polarizing and would more closely reflect the candidate supported by a majority of voters than a winner-take-all system would. RCV, also known as an instant runoff, would save taxpayer money for states that hold runoffs, advocates say. 

Opponents counter that ranked choice voting undermines the principle of one person, one vote and also increases the likelihood that the first choice of a plurality of voters won’t be the winner. 

The Connecticut Constitution approved in 1818 specifies that if a candidate for governor doesn’t get a majority of the vote, the state Legislature decides the winner, Tong’s opinion explains. 

The state amended the Constitution in 1901 to scrap this majority requirement for a “plurality provision,” meaning that whichever candidate got the most votes would be the winner. 

“At times, elections decided by the Legislature generated controversy—and, culminating in the 1890 gubernatorial election, gridlock and threats of violence,” the attorney general’s opinion says. “That debacle led to the 1901 adoption of Article XXX of the Amendments, which eliminated the majority requirement and instead permitted state officers to be elected by ‘the greatest number of votes.’” 

Tong noted that states and other jurisdictions at the turn of the 20th century were debating voting systems akin to what today is called ranked choice voting, and that one state, Oregon, amended its constitution to allow it. 

“And significantly, the framers of the 1901 amendment might well have known about RCV—which was then part of the public policy discourse—but, unlike the Oregon framers in 1908, declined to explicitly authorize it,” Tong’s opinion says. 

The Connecticut attorney general adds: “I must conclude that RCV would likely not be constitutional under Connecticut’s plurality provisions.” 

Tong’s opinion next looks at “count and declare provisions” in the state Constitution addressed in subsequent court decisions, which require local election officials to tabulate and announce the winner of a contest “in open meeting.” 

Under these provisions, the vote, “not the preferences used in reaching it—must be counted and declared by local officials in [an] open meeting,” the attorney general’s opinion says. 

The Connecticut Constitution, and dictionary meanings at the time the 1901 amendment was adopted, defined a vote as a choice rather than a ranking of preferences. 

In his opinion, Tong determines that “it would be difficult, if not impossible, for Connecticut’s local election officials to count and declare the ‘votes’ in an RCV system, at least for statewide or multi-district elections.” Using the word “elector” to refer to a voter, the attorney general writes:

Again: in RCV, at least as widely practiced, an elector’s final ‘vote’ can be determined only after every ballot cast in that election is tabulated and each elector’s ranked preferences are cross-checked and eliminated based on other electors’ preferences. Each final vote turns on other voters’ selections. So in a multi-town district or a statewide race, each town’s election officials would struggle to count and declare votes—the final outcome of the re-tabulation process—in an open meeting. They could only count and declare preliminary preferences.

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